Blanchard v. Lowell
59 N.E. 114
Mass.
1901
Check Treatment
Lathrop, J.

These are three petitions under the St. of 1893, c. 340, to quiet title to a parcel of land in Lynn.” The first ques*504tian raised by the respondents is that the petition does not allege that the petitioner has a record title to the land in question. Each petition alleges that the petitioner is seised in fee simple and is in possession of the land in question, which is déscribed by metes and bounds. It also alleges that the record title of the premises is clouded by an adverse claim or a possibility of an adverse claim made by the respondent who claims to own the premises' in fee. The prayer is that the respondent may be summoned to show cause why he should not bring an action to try such claim. No such question as is now sought to be raised was brought to the attention of the single justice of this court who heard the cases, although it is raised by the answers. The request for a ruling was in general terms, and was as follows: “ The respondents requested the court to rule that upon the pleadings and evidence the petitioner was not entitled to maintain his petition.” This ruling the court refused to give; and the respondents excepted.

If we assume that the question is open to the respondents, and need not be taken by demurrer, we are of opinion that the ruling was right. It is true that the statute applies only to a record title clouded by an adverse claim, or by the possibility of such claim ; Arnold v. Reed, 162 Mass. 438; and that the petition must be brought by certain persons; yet the statute goes on to describe what the petitioner must set forth in his petition, namely, his interest, a description of the premises, the claims and the possible adverse claimants, so far as known to him. The statute therefore states the jurisdictional facts, and if these are set forth it is enough. It is true that in Arnold v. Reed, ubi supra, it was said by Chief Justice Field: “ The question in this case is whether the petitioners allege and show a record title to the real property described in the petition ” ; but the decision went upon the ground that the petitioner did not have a record title, which was the only question raised by the report, which we have examined.

The next question is whether the petitioner showed that he had a record title. The bill of exceptions shows a record title in the petitioner. " It is true that it also shows a record title in the respondents. But if the petitioner has, in addition to a record title, possession, the question whether he has a better *505title or not does not arise, and is not to be determined in these proceedings, but in the actions which the respondents may be ordered to bring.

The remaining question is whether the petitioner showed that he was in possession of the land claiming an estate of freehold therein at the time of the date of the petition, namely, December 18, 1899. The exceptions state that the petitioner testified that the premises described in the deed first herein mentioned, (which we understand tó mean the deed of 1871,) were formerly enclosed by a fence or stone wall, and that in May, 1899, he enclosed the premises conveyed by Mahon to him by the deed of 1873, with a wire fence except on the southerly side, on which side was the line of the stone wall; that part of said wall had been removed for building purposes, and the person who removed it agreed to replace it; that he did not know of his own knowledge whether the wire fence, built in 1899, was standing at the time the petition was brought; that he had paid the taxes on the land continuously since the deed to him of 1873; that in 1887 he caused a survey of the premises to be made and posts to be set at the corners thereof; that the premises were uncultivated, and largely covered with bushes, of which he caused the premises to be cleared in 1889.

The court found that all the time from April 24,1873, to the time of the trial, the petitioner had been in uninterrupted, exclusive possession of the land described in the deed dated April 23, 1873, claiming title thereto under this deed; and that the prayer of the petition ought to be granted.

The respondents apparently put in no evidence and the case rested on the evidence of the petitioner.

The evidence shows acts of dominion exercised upon the land, beginning in 1887, and continuing at intervals down to a few months of the date of the petition. And this evidence, in the absence of proof to the contrary, would warrant the finding of the judge who heard the cases.

The respondents rely upon the case of Whitman v. Shaw, 166 Mass. 451, 461, to the point that the fact that the petitioner paid taxes upon the land is not evidence* of possession. The point decided in that case was that taking a deed of land from a person who had no title, and doing nothing more than to pay *506taxes did not give a title by adverse possession. The case did not decide that the fact that taxes are assessed and paid may not be taken into consideration when there is other evidence in the case tending to show possession ; and we are of opinion that when such is the case the fact that taxes are assessed and paid may be considered. Elwell v. Hinckley, 138 Mass. 225. See also Brown v. Matthews, 117 Mass. 506.

The respondents next contend that placing a wire fence on three sides of the premises is not evidence that the petitioner was in possession, and cite Coburn v. Hollis, 3 Met. 125. That case decided that the making of a fence on wild land by felling trees and lapping them together did not amount to a disseisin of the true owner. But the land in question in the case before us was not wild land, though it was not cultivated; and the land was enclosed on three sides by a wire fence, and on the other side by a stone wall. The condition of things was very different from that in the case cited.

As the land was not unenclosed wild land, the case does not fall within Parker v. Parker, 1 Allen, 245.

Exceptions overruled.